Welcome to Harry SK Tan's ByteLawyer Briefings.This is a personal blawg and commentary covering the current developments of the law and technology affecting business and society.

Saturday, August 25, 2007

Odex fails action against PacNet for disclosure of identity of downloaders

In what appears to be a straightforward case of licensors of Animeware - ODEX - for illegal downloading of pirated copies by thousands, Odex filed suits against all the local commercial ISPs to obtain the identities of those who downloaded the pirated Anime. Odex was able to obtain orders against Singnet and Starhub but not against Pacific Internet.

According to the Straits Times report, District Judge Ernest Lau gave a 14 page judgment explaining his grounds for his refusal to allow for the application by Odex against PacNet. Odex has in his view failed to prove its case against PacNet to the required level to prove that the ISP must be compelled to divulge the identities of the alleged wrongdoers. Judge Law likened their demand for the identities from the ISPs as an Anton Piller order. As AP orders are viewed as draconian and damaging, such ofrders should only be granted if the Plaintiff is able to prove that it has an extremely strong prima facie case. This high standard should be applied in the case of Odex case as to protect the public interest element. ISPs owe a duty to its subscribers to keep their identities confidential.

As for the Odex case itself, it was not able to prove that it was the copyright owner as it did not have the exclusive license from the copyright owners as required by the Singapore Copyright Act. As it was neither the copyright owner nor exclusive licensee, it did not have the locus standi to bring the action.

Further, the Judge also mentions that he was not satisfied with how Odex was able to arrive at it identified the alleged downloaders. As such, Odex did not fulfil its standard of proof to obtain the order.

The impact of this decision will be felt in more than IP suits against downloaders and ISPs. Other suits such as defamation, fraud or even commercial transactions will have to prove to a high standard to obtain the identities of account holders before they can commence the substantive action itself.

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